J.P. v. United States

679 F.Supp.3d 911

J.P., et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. CV-22-00683-PHX-MTL

United States District Court, D. Arizona

Signed June 28, 2023

Daniel Benjamin Pasternak, Squire Patton Boggs (US) LLP, Phoenix, AZ, Hena Vora, Pro Hac Vice, Michael T. Mervis, Pro Hac Vice, Michelle Katz Moriarty, Pro Hac Vice, Timothy Burroughs, Pro Hac Vice, Proskauer Rose LLP, New York, NY, Joel Frost-Tift, Pro Hac Vice, Rebecca Sarah Brown, Pro Hac Vice, Sara Lynn Van Hofwegen, Pro Hac Vice, Public Counsel, Los Angeles, CA, Manuel Cachan, Pro Hac Vice, Shawn Scott Ledingham, Jr., Pro Hac Vice, Proskauer Rose LLP, Los Angeles, CA, for Plaintiff J.P.

Daniel Benjamin Pasternak, Squire Patton Boggs (US) LLP, Phoenix, AZ, Hena Vora, Pro Hac Vice, Michael T. Mervis, Pro Hac Vice, Timothy Burroughs, Pro Hac Vice, Proskauer Rose LLP, New York, NY, Joel Frost-Tift, Pro Hac Vice, Rebecca Sarah Brown, Pro Hac Vice, Sara Lynn Van Hofwegen, Pro Hac Vice, Public Counsel, Los Angeles, CA, Manuel Cachan, Pro Hac Vice, Shawn Scott Ledingham, Jr., Pro Hac Vice, Proskauer Rose LLP, Los Angeles, CA, for Plaintiff L.C.

Theo Nickerson, U.S. Attorneys Office, Phoenix, AZ, for Defendant.

ORDER

Michael T. Liburdi, United States District Judge

Plaintiffs J.P. and L.C. (collectively "Plaintiffs") are a mother and minor daughter who illegally entered the United States seeking asylum.¹ Pursuant to the Trump Administration's immigration enforcement policies, Plaintiffs were separated from one another by Customs and Border Patrol ("CBP") while in federal custody. Plaintiffs have brought claims against the United States under the Federal Tort Claims Act ("FTCA") for injuries sustained from their separation. Pending before the Court is the United States' Motion to Dismiss Plaintiffs' First Amended Complaint ("Complaint" or "FAC") (Doc. 38).² The United States maintains that the government has not waived sovereign immunity under the FTCA, and that Plaintiffs' claims must be dismissed. For the reasons discussed below, the United States' Motion to Dismiss (Doc. 38) is granted in part and denied in part.

I. BACKGROUND³

A. Immigration Law and Policy

In January of 2017, former-President Donald Trump signed Executive Order No. 13767. This directive declared that the "executive branch [shall] . . . detain individuals apprehended on suspicion of violating Federal or State law, including Federal immigration law, pending further proceedings regarding those violations[.]" Executive Order 13767 § 2(b), 82 Fed. Reg. 8793 (Jan. 30, 2017). To effectuate this Order, the Attorney General of the United States issued a memorandum directing federal prosecutors along the United States' border to adopt a zero-tolerance approach to enforcement, and to prosecute all "Department of Homeland Security referrals of [federal immigration] violations." Attorney General Announces Zero-Tolerance Policy for Criminal Illegal Entry (April 6, 2018) DOJ 18-417, 2018 WL 1666622. Following the Attorney General's guidance, the United States Department of Homeland Security ("DHS") began prioritizing the detention and prosecution of individuals who illegally entered the United States in violation of federal and state law. (Doc. 35, ¶ 45.) The practical effect of these newly identified enforcement priorities was to separate thousands of children from their parents or guardians after they arrived at or crossed over the United States border. (Id., ¶ 7.) These children were placed in non-secure, licensed facilities under the care of the United States Department of Health and Human Services and the Office of Refugee Resettlement ("ORR").⁴ (Id., ¶¶ 16, 21.) The parents remained in secure detention facilities under the care and supervision of DHS, United States Immigration and Customs Enforcement ("ICE"), and CBP, pending removal proceedings. (Id., ¶¶ 16, 20.) On June 20, 2018, President Trump issued Executive Order No. 13481, "purporting to end the Family Separation Policy." (Id., ¶ 46.)

The Trump Administration's immigration enforcement policy at issue here is referred to as the "Family Separation Policy" in Plaintiffs' Complaint and as the "Zero-Tolerance Policy" in the United States' filings, so the Court will refer to the challenged actions as "the Policy" for clarity and ease of reference.

B. Plaintiffs' Detention

In early May, 2018, Plaintiffs fled Guatemala to the United States to escape violence in their home country. (Id., ¶ 3.) They traveled for nine days to the United States-Mexico Border. (Id., ¶ 51.) On May 16, 2018, Plaintiffs entered the United States illegally near the San Luis, Arizona port of entry. (Id., ¶ 52.) Shortly thereafter, CBP apprehended Plaintiffs. (Id., ¶ 53.) Initially, Plaintiffs were detained for three days at a border patrol station in Yuma, Arizona where they were subjected to cold, crowded conditions and were not provided showers, beds, or private toilets. (Id., ¶ 54.) CBP then determined that Plaintiffs needed to be detained at separate facilities. (Id., ¶ 59.) When CBP arrived, L.C. became distraught, fainted, and fell to the floor. (Id., ¶ 61.) J.P. saw her daughter's face bleeding, and she was overwhelmed because she could not help. (Id.) L.C. was taken to an emergency medical facility for treatment. (Id., ¶ 64.) L.C. was then taken to Southwest Key Casa Phoenix, a children's immigration shelter in Phoenix, Arizona. (Id., ¶ 65.) J.P. remained in the custody of CBP and was transferred to the Musick Detention Facility in Irvine, California. (Id., ¶ 71.)

Plaintiffs were separated from one another for 57 days. (Id., ¶ 81.) During this time, L.C. cried daily and would constantly ask officers to allow her to speak with her mother. (Id., ¶ 67.) Similarly, J.P. was distraught and was unable to ask officers to tell her where her daughter was because she was unable to understand, speak, or write in English or Spanish and was not provided an interpreter. (Id., ¶¶ 55, 70.) CBP at first denied Plaintiffs the means to communicate with one another, but, after J.P. obtained legal counsel, the two were allowed to maintain minimal contact through telephone calls. (Id., ¶ 77.) Eventually, on July 13, 2018, an immigration judge ordered that J.P. be released on bond. (Id., ¶ 80.) Three days later, J.P. and L.C. were reunited. (Id., ¶ 81.) Plaintiffs now live together in Florida, where they are pursuing asylum. (Id., ¶ 82.)

Due to their separation, Plaintiffs allege that they have suffered severe emotional distress and mental trauma. (Id., ¶¶ 84, 85.) Plaintiffs claim that the Policy violated their constitutional rights and have brought four claims against the United States under the FTCA for: (1) intentional infliction of emotional distress ("IIED"); (2) negligence; (3) abuse of process; and (4) loss of consortium. (Id. at 24-25.) The United States' Motion to Dismiss is fully briefed (Docs. 38, 41, 45) and the Court held oral argument on the same.

II. LEGAL STANDARD

A. Motion to Dismiss Under 12(b)(1)

Federal courts are courts of limited jurisdiction: "[t]hey possess only that power authorized by Constitution and statute." Kokkonen v. Guard. Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). "Congress has conferred on the district courts original jurisdiction in federal-question cases—civil actions that arise under the Constitution, laws, or treaties of the United States." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005) (citing 28 U.S.C. § 1331).

A party may move under Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss claims in which the court lacks subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) challenge may be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). When a defendant argues that the claims in the complaint, even if true, are insufficient to establish subject-matter jurisdiction, the challenge is a facial one. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial challenge to subject-matter jurisdiction under Rule 12(b)(1), courts must accept all material allegations in the complaint as true and construe the complaint in favor of the plaintiff. White, 227 F.3d at 1242; Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). When evaluating a Rule 12(b)(1) motion, the plaintiff bears "the burden of proof that jurisdiction does in fact exist." Thornhill Publ'g Co., Inc. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979) (citation omitted).

B. Federal Tort Claims Act

As a sovereign, the United States can "be sued only to the extent that it has waived its immunity[.]" United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The FTCA represents Congress' waiver of sovereign immunity "for claims arising out of torts committed by federal employees." Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 217-18, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (citing 28 U.S.C. § 1346(b)(1)). The FTCA, however, has only waived the United States' sovereign immunity for "certain categories of claims." Id. at 218, 128 S.Ct. 831. In general, the United States only waives sovereign immunity if an FTCA claim is: (1) against the United States; (2) for money damages; (3) for injury or loss of property, personal injury, or death; (4) that was "caused by the negligent or wrongful act or omission of any employee of the Government;" (5) while such employee is acting within the scope of their employment; and (6) "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). As a result, claims alleging violations of constitutional rights, or those based on acts or omissions of institutions, rather than individuals, are not cognizable under the FTCA. 28 U.S.C. § 2679(b)(2)(A); see Adams v. United States, 420 F.3d 1049, 1054 (9th Cir. 2005). To state...